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Gender-Based Dress Codes: Human Resources, Diversity And Legal Impact

Mirande Valbrune is an employment lawyer with a passion for Employee Relations work. She is the author of #MeToo: A Practical Guide.

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Several weeks ago, the internet was ablaze with discussion of a leaked video of “Bad Girls” who were deemed “dress code violators” as part of a promotional effort to encourage proper attire at a Texas high school. The content went viral among allegations that it was sexist, as it only featured schoolgirls, and did not appear to place the same burden on schoolboys to uphold dress code standards.

Outside of this academic context, many employers today are aware of the dangers of creating and applying gender-based employment policies. Nevertheless, gender-based dress codes continue to raise concerns in the workplace. Employers that create and enforce poorly drafted gender-based dress code policies assume the risk of running afoul of gender discrimination laws. Additionally, there is a potential impact to transgender employees.

Title VII of the Civil Rights Act of 1964 protects employees against discrimination on the basis of their gender. If a policy inappropriately targets or negatively impacts employees of a particular gender, it may be deemed illegal.

Guidelines For Considering A Dress Code Policy

Companies that impose dress codes should consider modifying them to include gender-neutral language, such as requiring attire that is professionally appropriate for the office or unit in which an employee works. A contrasting example would be explicitly requiring women to wear dresses or skirts, while male employees must wear tailored shirts and slacks. This would be generally considered legal, though there may be some restrictions at the state and local level (i.e., the state of California specifically allows female employees to wear pants).

As noted by the Human Rights Campaign, “Employers can legally implement gender-specific dress codes as long as they are not arbitrarily enforced and do not favor or affect one gender over another.” Thus, the employer should ensure equal and consistent enforcement of the code on male and female employees, and should avoid burdening one gender compared to another. Thus, a policy that requires women to wear makeup, have their hair done, wear stockings, etc., whereas men must simply look “neat,” might prove problematic.

Employers may generally establish employee dress and grooming guidelines for employees to follow during work hours, as long as they are reasonable and serve a legitimate business purpose — e.g., safety, promotional and marketing opportunities, easy identification of their employees, branding or the employer’s desire to present a specific image to the public.

Impact On Transgender Employees

Also important to the discussion of gender-based dress code policies are gender non-conforming employees. Rights for transgender and transitioning employees in the workplace are still an evolving area of the law. There are no federal civil employee rights laws explicitly addressing transgender employees or protecting gender identity. In fact, current Attorney General Jeff Sessions has taken the position that Title VII does not protect transgender people from discrimination in the workplace. However, the Equal Employment Opportunity Commission (EEOC) "interprets and enforces Title VII's prohibition of sex discrimination as forbidding any employment discrimination based on gender identity" or transitioning status. The majority of federal courts find that discrimination against transgender people violates federal sex discrimination laws. The United States Supreme Court has yet to opine on the issue of transgender rights in the workplace, though this will be a much anticipated and decisive ruling.

Further to the federal law question, a number of state laws explicitly protect transgender and transitioning employees from employment discrimination. Accordingly, employers need to be mindful of what jurisdictions they are doing business in when considering the legal risk of creating and enforcing gender-based dress code policies, given the potential impact on transgender employees.

In addition to any legal exposure, companies should keep in mind diversity and inclusion best practices. Dress codes should allow transgender employees to feel comfortable living full-time in the role consistent with their gender identity, and should not prevent them from maintaining a gender-neutral appearance. Additionally, as observed with business casual dress code policies, employers experience a competitive advantage by offering all employees increased dress and grooming flexibility. This, of course, is mitigated by whether the nature of the employees’ roles, or the company’s services, demand otherwise.

Sample Dress Code Policy Language

For companies considering a dress code policy, below is some gender-neutral language which may be helpful:

• Business Casual Attire: Business casual, generally comprised of casual slacks and skirts, collared shirts, blouses and sweaters, is appropriate attire in all company locations and for most situations. Exceptions to our business casual policy include those situations when an employee is representing the company to an external audience.

• Traditional Business Attire: In general, traditional business attire, such as suits, dresses and tailored pantsuits, is required for occasions involving contact with clients, prospects or the public. Certain situations, such as informal business-social outings, will require personal discretion. Business casual attire may be appropriate in these instances or when a client has expressly indicated that it would be acceptable. At all times, employees are expected to exercise good judgment and dress in a manner consistent with the company’s professional standards.

• Inappropriate Attire: Inappropriate attire includes, but is not limited to, active sportswear, jeans, shorts, halter tops, sneakers, beach shoes or similar footwear, T-shirts or apparel with messages or commercial advertising, as well as unkempt or inappropriately revealing clothing. Employees are expected to exercise good judgment in choosing their work clothes. Any employee coming to work in attire that is deemed inappropriate by their manager may be asked to leave work and return appropriately dressed. The time used to change will not be considered hours worked.

The Stakes

Keep in mind that the stakes for getting this wrong may be high. Though it is hard to say how often sexual discrimination complaints are filed alleging unlawful gender-based policies specifically, the EEOC's website reveals that 25,605 sex-based charges were filed in 2017. The EEOC views discrimination against an individual because of gender identity, including transgender status, as sex discrimination.